bank" and was "chased out into the river." Plaintiff alleged that "having placed Lach in a perilous position out in the Monongahela River," the security officers took no action to rescue him.
The undisputed facts before the Court present a scenario significantly different from that alleged: as the university security officers were pursuing Lach, one of them grabbed at Lach and later rolled or threw his flashlight at Lach to trip Lach, but missed him. Contrary to plaintiff's allegations of excessive force, the university security officers did not draw weapons, or fire at Lach, or beat Lach, or with the exception of grabbing at Lach, have any physical contact with Lach whatsoever.
The undisputed facts also indicate that the university security officers followed Lach to the riverbank, and that Lach climbed or fell down the embankment to the river. The university security officers remained on the embankment, shone lights on Lach, and shouted to Lach to return to shore. Contrary to plaintiff's allegations that the university security officers placed Lach in a position of danger, Lach placed himself in a position of danger. Lach fled toward the river, and after climbing or falling down the embankment, refused to heed the officers' shouts to return to shore.
Qualified immunity shields government officials performing discretionary functions from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523, 530 (1987). The relevant inquiry is the objective question whether a reasonable officer could have believed the defendant's action to be lawful, in light of clearly established law. Id. 97 L. Ed. 2d at 532.
Here the question becomes whether a reasonable officer could have believed that university security officers' actions - throwing a police flashlight at Lach to attempt to trip him as he fled and pursuing Lach to a riverbank and shouting for Lach to return - were lawful in light of the constitutional proscription against the use of excessive force and the constitutional obligation to rescue a person whom the state places in a position of danger. Stating the question makes it obvious that it must be answered in the affirmative. Notwithstanding plaintiff's arguments that the university security officers acted with "reckless disregard" or "deliberate indifference" to Lach's rights, based on the undisputed facts before the Court, the university security officers are shielded by qualified immunity.
Because the university security officers have qualified immunity on the § 1983 claim, they are entitled to summary judgment on the § 1983 claim.
All defendants are entitled to summary judgment on the § 1983 claims: the municipal police officers because there is no evidence of a constitutional obligation to rescue Lach, the municipality and its mayor because there is no underlying constitutional tort, the university because of the eleventh amendment, the university president because there is no evidence of a constitutional violation, and the university security officers because of qualified immunity. Plaintiff has also asserted pendent state law claims: failure to maintain realty against the university, wrongful death and survival against the university president and the university security officers, and wrongful death and survival against the mayor and municipal police officers.
The eleventh amendment bars pendent state law claims brought against a state or its agencies in federal court. Allegheny County Sanitary Authority v. United States EPA, 732 F.2d 1167, 1173-1174 (3d Cir. 1984). Therefore, the eleventh amendment bars the failure to maintain realty claim asserted against the university.
Similarly the eleventh amendment bars pendent state law claims seeking damages against a state official acting in his official capacity brought in federal court. Laskaris v. Thornburgh, 661 F.2d at 25-26. However, the eleventh amendment does not bar pendent state law claims seeking damages against a state official acting in his individual capacity. Id. Because the university president and university security officers are sued in both their official and individual capacities, the eleventh amendment bars the wrongful death and survival actions against them in their official capacities.
Thus, there remains pendent state law claims for wrongful death and survival asserted against the university president in his individual capacity, the university security officers in their individual capacities, the mayor in his official and individual capacities and the municipal police officers in their individual and official capacities.
The decision whether to retain jurisdiction over the remaining pendent state law claim is committed to the sound discretion of the district court. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S. Ct. 614, 98 L. Ed. 2d 720, slip op. at 6 (1988). In order to decide whether to exercise jurisdiction over pendent state law claims a court should consider and weigh the values of judicial economy, convenience, fairness and comity. Id. In the usual case in which all federal law claims are eliminated before trial, the balance of factors will point toward declining to exercise jurisdiction over the remaining pendent state law claims. Id. at n. 7; see also Weaver v. Marine Bank, 683 F.2d 744, 746 (3d Cir. 1982).
In the present case all the federal claims have been eliminated before trial. Moreover, several of the pendent state law claims, because of the eleventh amendment, may only be heard in state court. There is presently pending in state court a wrongful death and survival action against the university. Given this posture, the pendent state law claims will be dismissed without prejudice.
An appropriate order will be entered.
AND NOW February 16, 1988 in accordance with the foregoing memorandum opinion, IT IS HEREBY ORDERED that summary judgment is entered for the defendants and against the plaintiff on the remaining federal claim and that the state law claims are dismissed without prejudice.